Decision Date: 08/18/95 Archive Date:
08/21/95
DOCKET NO. 93-19 960 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased evaluation for a psychoneurosis,
rated as an anxiety reaction, currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. R. King, Associate Counsel
INTRODUCTION
The appellant served on active duty from March 1943 to
August 1945.
This matter is before the Board of Veterans Appeals (Board)
on appeal from an April 1993 rating determination of the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Buffalo, New York, which denied the appellant's
claim for an increased evaluation for his service-connected
anxiety reaction.
The appellant appeared before a member of the Board at a
personal hearing in Washington, D.C. in November 1993.
Statements made during testimony at the hearing are
construed to raise the issue of entitlement to a total
rating based on individual unemployability. This issue is
referred to the RO for appropriate action.
REMAND
The appellant maintains, in essence, that his service-
connected anxiety reaction is more severe than is
compensated by the currently assigned 30 percent evaluation.
He alleges that he experiences episodes of trembling which
are brought on by any stressful situation, asserting that he
is unable to perform the duties of his profession, musical
composition, because of his disorder. He also maintains
that he has had sleep disturbances as a result of his
anxiety reaction. He maintains that he has expressed his
increased symptoms to his VA psychiatrist, but that this
history is inaccurately reflected in the medical records
reviewed by the RO in making its April 1993 rating
determination.
In November 1993 the appellant testified as to the effect of
his service-connected disorder on his professional and
personal life. He indicated that the use of medications
prescribed for his disorder prevent him from functioning as
a musical performer. He indicated that when he does not
take the medication, he becomes so nervous that he
experiences tremors of the hands, preventing him from
playing the violin. He also testified that his service-
connected disability was of such severity as to cause him to
discontinue his job as a teacher.
Testimony provided by the appellant also included his
statement that he was last examined by the VA in 1966 and
that he was recently to have been afforded a VA psychiatric
examination, but that none was furnished to him. In this
regard, an April 1993 VA Report of Contact form is of record
which reflects that the appellant was to have been examined
by the VA in March 1993, but that he was unable to attend.
It is also apparent that another examination has not as yet
been scheduled. A review of the record reflects that the
appellant was last examined in May 1971 and the Board is of
the opinion that the appellant should be afforded a current
VA psychiatric examination in order to determine the nature
and severity of any pathology found.
Additionally, the appellant testified that he has received
psychiatric treatment from a VA psychiatrist on a bi-monthly
basis. It is also alleged that VA psychiatrists have
prescribed medications for him on a regular basis. The
record, however, reflects only sporadic psychiatric
treatment, and as there is an inconsistency between the
number of available treatment records for review and the
number of times the appellant has alleged being treated, it
is the determination of the Board that the RO should be
requested to obtain all outstanding VA outpatient treatment
records and associate them with the claims folder.
VA has a duty to assist the appellant in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107 (a) (West
1991). The United States Court of Veterans Appeals has held
that the duty to assist the appellant in obtaining and
developing available facts and evidence to support his claim
includes obtaining adequate VA examinations. Littke v.
Derwinski, 1 Vet.App. 90 (1990). The fulfillment of the
statutory duty to assist includes conducting a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully
informed one. Moreover, VA has a duty to acknowledge and
consider all regulations which are potentially applicable
through the assertions and issues raised in the record and
to explain the reasons and bases for its conclusion.
Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The complete
medical history must be reviewed to protect claimants
against adverse decisions based upon a single, incomplete or
inaccurate report and to enable VA to make a more precise
evaluation upon of the level of the disability and of any
change in the condition. Schafrath, 1 Vet.App. at 593-94.
In view of the development necessary with respect to the
issues in this matter, the case is REMANDED to the RO for
the following actions:
1. The RO should request that the appellant identify all
health care providers from whom he has received treatment
for his psychiatric disorder during 1993 and thereafter.
The RO should obtain copies of treatment records from all
sources identified by the appellant, to include complete
records of all treatment provided the appellant at any VA
Medical facility.
2. The RO should arrange for the appellant to be scheduled
for a psychiatric examination in order to determine the
severity of his service connected anxiety disorder. All
indicated studies deemed appropriate should be performed and
the psychiatrist should comment on the degree of social and
industrial impairment which the appellant experiences as a
result of his service-connected anxiety disorder. The
examiner should assign a numerical code under the Global
Assessment of Functioning Scale (GAF) provided in the
Diagnostic and Statistical Manual for Mental Disorders (DSM)
and explain what the assigned code represents. The claims
folder must be made available to the examiner in conjunction
with the examination.
Thereafter, the case should be reviewed by the RO. If the
benefit sought is not granted, a supplemental statement of
the case should be issued to the appellant and his
representative and they should be provided an opportunity to
respond. The claims folder should then be returned to the
Board for further review, if necessary. By this action, the
Board intimates no opinion, legal or factual, as to the
ultimate outcome of this case.
GARY L. GICK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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